Update on Asylum Seekers and Family Reunification

We hosted a panel in October who gave us an update on Immigration and Family Reunification particularly at the Texas border.  Here are attorney and former prosecutor Hunter Wiggins’ notes about asylum seekers.

How easy is it to get asylum in the United States?

Getting asylum in the United States is hard and getting much harder. There are two ways to get asylum: apply affirmatively (1) from outside the US and get a decision before coming – called affirmative asylum — (2) or arrive at the border and apply defensively against being removed.

The total U.S. population is 325 million.

In 2016, we had 115,000 affirmative applications from outside the country, and 11,729 total were granted, which is about 10%. That same year, people at the border filed about 66,000 defensive asylum applications, up from 48,000 in 2012, according to the Department of Homeland Security’s (DHS) Annual Flow Report on Refugees and Asylees: 2016.

In 2017, the last year for which we have court information, about 30,000 of these defensive kinds of cases were decided by immigration judges (which had been filed over different years), up sharply from 22,000 decisions in 2016. Only 38% —or about 11,400 —were granted while 62% were denied.

This is a big shift from 2012, when there was a 56% grant rate, according to TRAC Immigration.

So, assuming 2017 affirmative grants are about the same as 2016 ones, which is optimistic, our total asylum grants in 2017 were around 23,000 based on around 180k applications for a grant rate of around 12.7%. Conversely, we removed about 230,000 people for improper entry in 2016.

Compare this to the EU, with a total population of 742 million. In 2017 they had 650,000 first-time asylum seekers in all EU countries, and about 315,000 (46%) of all first time seekers received positive outcomes. In addition, a total of 538,000 people received asylum status in 2017.

It’s also worth knowing the country of origin for the ones we do grant asylum to people presenting at the border. In 2016 government data: 36% were from China; 9% from El Salvador; 7% from Guatemala; 7% from Honduras; and 5% from Mexico.

There is a sense among many that our overall demographics are changing, but, again, we need some historical and global context. Overall, total immigrants make up about 15% of our population, about 50 million people, which is up from 9% in 1990.

Some other countries have far higher immigrant populations by percentage, including Australia 28%, Canada 22%, Switzerland 28%, and New Zealand 25%, according to 2013 UN estimates as reported by the United Nations Department of Economic and Social Affairs 2015 report, Trends in International Migrant Stock: The 2015 Revision. According to the UN, these estimates were “based on official statistics on the foreign-born or the foreign population.”

Of those 50 million, DHS and the Pew Research Center estimate that that about 11.3 million of them are unauthorized, the largest group being from Mexico (6.6M). This is not per year, but the total population, which includes DACA recipients. About half of these people got here how? By overstaying their legally granted visa.

Why do we allow people to apply for asylum?

We have signed onto international law and international treaty and have written it into US law that we will do this, like many other countries in the world. The U.S. is a signatory to the 1967 treaty called the Protocol Regarding the Status of Refugees, which incorporated and expanded upon the 1951 Convention Relating to the Status of Refugees. We also expanded our law beyond our treaty obligations through the Refugee Act of 1980. Both the law and the treaty cover claims for asylum.

Notably for the present situation, the 1951 Convention says on page 3 of the preamble that “refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offenses related to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.”

As a country, we are breaking that obligation every time we criminally prosecute an asylum seeker based on their improper entry, or if we impose “binary choice” detention not based on dangerousness but simply because they are seeking asylum.

Zero Tolerance

Historically, by and large, we haven’t prosecuted individuals who have come across the border between checkpoints for that violation in large numbers, although we did prosecute “coyotes” and border crossers who engage in other criminal conduct. Note that this decision not to charge people seeking asylum is consistent with our legal obligations and the 1951 Convention. Historically, border crossers were either promptly deported or they requested to participate in the asylum system. Filing criminal cases was not a priority.

There’s something else worth noting that didn’t get much attention: even if the DOJ had wanted to enforce “zero tolerance,” nothing required them to handle the criminal case first and put the asylum seeker in criminal jail before their immigration process was completed. The statute of limitations for improper entry is five years.

They could have let the immigration process run its course and then charged the criminal case, which would have kept the families together. The order in which things were done was an intentional choice. Let’s also give this crime of improper entry some context. There are five levels of felony (A-E) and three levels of misdemeanor (A-C). Penalties for felonies range from Class A, which can be life without parole or the death penalty, down to E felonies that are five years. Below all the felonies, you have three classes of misdemeanors where Class A is a one year maximum, Class B six months and so on.)

Some people don’t know that most immigration offenses, like overstaying a visa, are not crimes at all. They are civil offenses. For those crossing the border at a location other than a formal checkpoint, the actual crime being charged is called improper entry, which is a federal Class B misdemeanor. The sentences for people charged with this crime during the zero tolerance regime? Usually time served (3-10 days) and a $10 fine.

Here’s a bit of editorializing, but I hope you find it helpful for context. For some reason, most of us don’t think about or acknowledge that all or at least most of us are criminals. If people think of themselves as “law and order” and think zero tolerance is appropriate, consider the following. A few months back I did about 15 minutes of looking, and here are some examples of federal or Illinois crimes that are rated more serious than a Class B misdemeanor:

1) minor in possession of or drinking alcohol
2) using a fake ID or lending your ID to someone
3) reckless driving, which is more than 25 mph over the speed limit or swerving lanes without signaling or “negligent driving”
4) vandalism
5) vandalism of a mailbox – even worse (sorry, bringing back my youth)
6) downloading a song or movie without paying for it
7) sharing your Netflix password with someone who doesn’t live in your house
8) bringing fireworks into Illinois from another state

Would you want zero tolerance and bringing out the national guard or the army to enforce these things against you or against your kids? I would have spent my 20s in jail. If you have friends or neighbors who think of themselves as a “law and order” people, please ask them: are you for law and order for everyone and every law, or just for other people for the laws you’re not likely to break?

The Flores Order and Child Detention

The administration has said that the decision to separate children from parents was not done to deter asylum seekers, that the idea was “offensive.” Based on the facts that have been revealed over time, there is only one way to describe these statements: they are lies.

Most people inaccurately believe that the zero tolerance policy began in May 2018. Here is a timeline of what is currently known about the child separation/zero tolerance policy.

On March 7, 2017, head of DHS John Kelly said on CNN that he was considering separating children from parents “in order to deter more movement along this terribly dangerous network. I am considering exactly that.”

There was public outcry, and on April 5, 2017, in a hearing before the Senate’s Homeland Security Committee, John Kelly was asked if DHS planned to take children from mothers who were apprehended at the border, Kelly said “only if the situation at that point in time requires it. Not routinely.” The senator then said “if you thought the child was endangered, that’s the only circumstance in which you would separate.” Kelly’s response? “Can’t imagine doing it otherwise.”

We also know from the July 30, 2018 Congressional testimony of Commander Jonathan White that the Office of Refugee Resettlement within the Department of Health and Human Services during 2017 and into 2018 had “raised a number of concerns … about any policy which would result in family separation, due to concerns we had about the best interest of the child” and bed capacity, because it “entails significant potential for traumatic psychological injury to the child.”

White testified that in response to those concerns he was told even up to the day he left his position in March 2018, he was “advised that there was no policy which would result in separation of children from family units.”

People believed in 2017 that the policy option of family separation had been rejected, and White believed he had been told the truth. It had not and he had not.

On April 11, 2017, Attorney General Jeff Sessions instructed US attorneys’ offices in Arizona, New Mexico, Texas, and California to work with DHS to revise their guidelines for prosecuting first time misdemeanor unlawful entry.

In July 2017 through October 2017, with no notice to the public, DHS began running a what a DHS official called a “pilot program” for zero tolerance in the “El Paso sector” of the border, during which somewhere between 700-1000 children of all ages were separated from their parents and parents were criminally prosecuted.

Lawyers and immigration social service providers on the ground in El Paso noticed the changes. On October 24, 2017, immigration advocates, attorneys and faith leaders in El Paso sat down with government officials from CBP, ICE, and DHS in a meeting convened by Congressman Beto O’Rourke. The government officials were asked if there was a new policy involving prosecution and separation of parents with arriving children. A CBP agent answered and said “the new policy is we can separate children as long as they are 10 or older.” This was the first time any of them had heard this. The advocates responded that they had clients whose children were separated who were as young as three and four years old. The following day they received a letter from the CBP general counsel’s office that said “the Border Patrol does not have a blanket policy requiring the separation of family units.” Three days after the El Paso meeting, according to a DHS official, the pilot program was abruptly ended. It was deemed a success.

This El Paso pilot program was cited in an April 2018 internal memo to DHS Secretary Nielsen from ICE and CBP officials recommending the zero tolerance program be expanded across the entire southern border. The memo said that separating parents and children and threatening adults with criminal charges and prison time would be the “most effective” way to reduce the number of attempted crossings.

In May 2018, again with no notice to the public, DHS instituted “zero tolerance” across the southern border. When the policy was instituted, now Chief of Staff John Kelly came out again and said, “a big name of the game is deterrence” and family separation “would be a tough deterrent.” Attorney General Sessions also said it was meant to be a deterrent from improper crossing and that “hopefully people will get the message and come through the border at the port of entry.” However, as a court reviewing the separation policy found in June 2018, under the so-called “zero tolerance” policy, dozens of families that presented at a formal checkpoint were also separated.

And as difficult as it may be to face, we now know that the administration separated children despite being told the trauma it would inflict. And it did this with no plan or intent to reconnect children to their parents, as lawyers with the Department of Justice told a federal judge in the lawsuit brought against the administration in California on behalf of the separated families.

Not only was this done despite the harm to the children and without any plan to reunite the children with their parents, the administration also put into effect two new policies in May and June 2018 that got very little attention, but that have made things much more difficult not only for the 3,000 newly created unaccompanied minors, but for the other 10,000 unaccompanied children in the system. These policies are still in place today.

To understand the impact of these two policies, you need to know a little about what happens to unaccompanied immigrant minors. They are held in children’s shelters during the entire length of their proceedings unless they can be released to a sponsor to care for them on the outside. The Office of Refugee Resettlement, which is part of Health and Human Services (HHS), is responsible for identifying and screening sponsors —usually and preferably a relative—and if one can’t be found the child remains in the foster system.

So what changed? First, a new HHS Rule was created in June that requires ICE to check the immigration status of sponsors and anyone else living in the sponsor’s homes and get biometric data—fingerprints and potentially retinal scans—of all of them before releasing the minor.

This wasn’t the case before. Kids are supposed to go to a close relative or caregiver, some of whom, you can imagine, might be here illegally. This new rule will now discourage some potential sponsors from coming forward and results in kids staying in detention longer separated from family. Many people attribute the explosion of the number of detained children, up to 12k from about 3,500 a year ago, to this decision.

Second, there have been recent changes for how unaccompanied minors navigate the very complex and confusing legal process. Imagine going into an immigration court where you don’t know the process or speak the language and have to represent yourself. Now imagine doing it as a child, and I mean child, like six years old. For over a decade, the Office of Refugee Resettlement has had a program that has funded organizations representing unaccompanied minors in immigration court while they live with their adult relatives or guardians. And if you’re an unaccompanied minor, having a lawyer is the difference between getting to stay and getting deported. More than 7 in 10 unaccompanied minors with lawyers win the right to stay legally in the United States, while 9 in 10 without representation lose. So what happened? The Office of Refugee Resettlement abruptly told all those groups to stop taking on any new cases representing unaccompanied minors. When? Just days after the family separation policy began in May. Why? They didn’t say.

Indefinite detention

Even if the idea of indefinite detention of mothers and children doesn’t pull on your heart strings, consider your wallet. Detention is MUCH more expensive than alternatives to detention, sometimes called ATDs. These alternatives to detention allow the government to track asylum seekers who are out pending their hearing. These are often paired with bond, which can average about $9,000, much higher than in years past, the loss of which can be a powerful deterrent by itself.

Here are some statistics from 2017.

DHS estimated in its proposed FY2018 budget that it costs $134 per day to hold a person in regular detention and $319 for an individual in family detention. DHS estimated that the average cost of per ATD participant in various programs would be $4.50 per day. A 2014 Government Accounting Office (GAO) report concluded that the daily rate for ATD was less than 7% of that for detention. Now, people in ATD might be enrolled in that program for longer, because the courts prioritize in detention hearings. But GAO found that an individual would have to be on ATD for 1,229 days before time on ATD and time in detention would cost the same amount. And that doesn’t take into account the possibility of a work permit after 150 days where a person could begin to pay into the economy.

But if ATDs are so much cheaper, they must not work, right? Wrong.

ICE’s own ATD program and several community supported full-service pilot programs, including ones with case management and personal visits for example, showed over 95% were found to appear for their final court hearings. ICE has another program that uses ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting, and GPS technology to track people, at a cost of $0.30 cents to $8 per day. In 2013, 96% of those enrolled appeared for their final court hearings. ICE also had a pilot program called the Family Case Management Program (FCMP), the least intrusive and least stigmatizing program in which families with special circumstances, like nursing and pregnant mothers and ones with very young children, received caseworker support without having to wear an ankle bracelet, this had 99% compliance with court appearances at a cost of $36 per day per family of a parent with two children; detention for the same family would cost $950 per day. So it’s not a surprise when DHS’s own congressional budget justification released in May 2017 said “historically, ICE has seen strong alien cooperation with ATD requirements during the adjudication of immigration proceedings.”

And remember, the administration is now asking for authority for 15,000 new family detention beds, which will cost roughly $2 billion dollars more a year. Based on available data, alternatives to detention for those 15,000 beds would cost more than 90% less.

If ATDs are so much cheaper and they work, why doesn’t the government pursue them instead of seeking more detention?

So, you would think we would be expanding these programs right? Wrong. Did anyone notice when I said that ICE “had” a Family Case Management Program that had 99% compliance for $36 per family? I said “had” because in June 2017 the administration shut it down, even though it had paid the private contractor for the program through September 2017 – in fact they had to pay a fine to the contractor to terminate the program early.

Why does the government fight bond in every case and want everyone detained? Is it because we think these asylum seekers are more dangerous? More likely to be criminals? The president’s response to the outrage about forced family separation was to hold a press conference with some families who have had family members killed by undocumented aliens over the past several years. Those are real and tragic stories, and they should not be minimized. But they should not be magnified either. Anecdotes are not a way to make policy.

What does the data really tell us about immigrants and crime? If you are fearful about crime you shouldn’t be afraid of immigrants, you should be afraid of native-born people. In March 2017, the Cato Institute did a study and white paper on immigration and incarceration.

The data from the study showed that 1.53% of native-born Americans are incarcerated. For legal immigrants, the number is 0.47% or less than a third! And for illegal immigrants, including immigration crime which is not a crime against people or property, the rate is 0.85%, and if you remove just immigration-related offenses the number is closer to 0.50%. But even taking the 0.85% number, you get a blended immigrant incarceration rate of 0.58%. Doing rough math, it means that even though one sixth of the population is foreign born about 17 of every 18 incarcerated individuals is native born. And if you pull out immigration offenses it’s about 20 of every 21.

Also, based on the social science research done that has been cited many times in many places, the data shows that immigrants are:

1) more entrepreneurial
2) more church going
3) less likely to have children out of wedlock
4) far less likely to commit crime
5) and, according to a review done by Harvard and Tufts University analyzing 16 different peer reviewed studies, immigrants use substantially less healthcare per person than native born Americans. In fact, they have contributed $14 billion more to the Medicare trust fund than they have used

What can we do?


A study done by American Immigration Council shows 63% of all immigrants and 86% of detained immigrants went to court without an attorney. Most, including children, don’t have lawyers to advocate for them. Support legal aid and organizations that represent detainees, like RAICES or Texas Civil Rights Project, or legal aid in Rio Grande or El Paso.

Bond is crucial. It’s fought every step of the way by the current administration, but it lets families be together, it removes children and already traumatized people from the trauma of confinement; it’s cheaper and quite effective as we talked about, and people can work and be productive rather than being a huge cost. Give money to organizations like RAICES that help put up bond for detainees.

Require the truth and call out untruths from public speakers. Politicians definitely, but here’s another example. Jeff Sessions’ pastor in DC said this past Sunday from the pulpit that she disagrees profoundly with the policy and that it had “serious unintended consequences: the traumatization of some of the most vulnerable people in our hemisphere. The young children of poor immigrant families, separating them from their parents and causing great trauma.” All of that is true except for one word: “unintended.” I don’t know why she said this, but I have a guess. It’s horrific to think that your parishioner, and maybe your friend, could intentionally hurt children. But he did. This harm was intended and considered an acceptable tool to try to deter parental behavior. And telling an untruth about it takes away any chance of true repentance and weakens the demand for justice. Demand truth in your news sources, in your pulpit, and from your friends and neighbors.

Consider becoming foster parents or foster parent qualified. I don’t think this is going away soon, and there may come a time where many more thousands of children need a stable loving home.

Participate in demanding change from our government. These outcomes are the result of choices exercised by our government in our name. Contact your elected officials and very simply say “that you care very deeply about this issue, that until I hear you say something and see you do something to put a stop to what is happening, I will work to elect someone who will.”